To indicate or not to indicate? Definitive guidance on credit for a guilty plea issued in R v Plaku [2021]

July 29, 2021

Alex Menary and Charlotte Noddings

The Court of Appeal considered a number of appeals in relation to the apparently never-ending issue of when full credit is available to a defendant for their early guilty plea in Plaku & Ors [2021] EWCA Crim 568, observing that there was “still some misunderstanding” concerning the Reduction in Sentence Guideline.

There has been a line of recent authorities concerning the correct application of the Guideline, and in reality there is very little that is new in Plaku, other than to helpfully collate the principles from those cases in the same place. The Court stressed the importance of the timing of the indication of the plea, rather than when it was entered; that any early indication must be unequivocal; and that an accurate BCM form must be uploaded as soon as possible to the DCS / Common Platform.

The Key Principles

Before dealing with the appeals in turn, the Court set out the following general principles, including a checklist that if followed would ensure defendants were awarded the full one-third discount: If not then the Court made clear it will likely be 25% unless one of the exceptions applied (see below):

1. The defendant will only be afforded full credit where they pleaded guilty at the first stage of proceedings. In relation to indictable only offences, this will mean indicating a guilty plea before the lower court (and presumably this being accurately recorded on the BCM form – a responsibility now incumbent on the defendant’s representatives), and then entering a guilty plea at the first hearing at the Crown Court. There might be exceptional circumstances in which the Court might be satisfied that the full third, or almost full third, is appropriate where an unequivocal guilty plea was indicated to the Court and prosecution very shortly after that first hearing in the magistrates, but the Court’s view was that such cases would be rare. If the plea was only entered at the first hearing at the Crown Court, then the reduction will be 25%. If the case was listed for trial, then the reduction will be on the familiar sliding scale from 25% to 10% on the day of trial.
2. An indication of a guilty plea has to be unequivocal. An indication of likely plea is not enough – the Guideline focuses on when the plea is indicated and not when it is entered. The endorsement on the BCM form must also be explicit – any words such as “probable”, “likely” would result in 25% credit, but an endorsement of “G indication” was considered enough.
3. When the case is sent to the Crown Court, it is essential that a BCM form is uploaded to the Digital Case System (and in due course the Common Platform). As a result of Placu the BCM form will now assume primacy in assessing what happened at the lower court and the level of credit that should be applied. Those representing the defendant at the lower court should make sure it accurately reflects the defendant’s indication, as any failure to do so, or miscommunication, could result in a loss of credit.
4. Where the defendant entered pleas to different offences at different stages then it was a matter for the Court to decide whether to view them separately and give differing levels of credit, or to take a global view and apply the same reduction across the board. No general guidance was appropriate.
5. One third was the maximum level of reduction: matters such as cooperation with the police or being the first in a conspiracy to break ranks and plead guilty, might be advanced as mitigation, but must be considered on a fact specific basis before the appropriate reduction was applied.

The Exceptions

There are a number of exceptions referred to in the guideline:

1. Further information, assistance or advice necessary before indicating plea;
2. Newton Hearings and Special Reasons Hearings;
3. Offender convicted of a lesser or different offence (and unequivocal plea to that offered at an earlier stage);
4. Minimum sentence under s311 SA 2020 (firearms);
5. Minimum sentence under s312-315 SA 2020 (knives / offensive weapons / drug trafficking / burglaries)

The first exception was the only one discussed by the Court of Appeal. They made clear that this exception only applies when the defendant cannot know at the first appearance whether he is guilty in law and facts or can be advised to that effect.

These cases should be distinguished from cases where the defendant has delayed a plea to assess their chance of acquittal: “Proper application of the guideline and fairness to those who do indicate a guilty plea at the first stage of proceedings demands that this distinction be observed”. This has somewhat eroded this exception as no longer can representatives rely on the old excuse of “there wasn’t enough evidence to advise”.

In reality, applying the above as a checklist is likely to yield identical results for practitioners at PTPH as currently: if there is an unequivocal indication of a guilty plea recorded on the BCM form then full credit will be afforded. If not then it will be 25%, even in circumstances where fitness to plead and stand trial are live issues, in the absence of an endorsement that would presumably read “This D will plead guilty unequivocally, so long as he is fit to do so…”.

Where it seems that the whole point of an unequivocal guilty plea or indication at an early stage, and the discount that flows from it, is the saving of time and money as the CPS will carry out little or no further preparatory work on the case, then it is hard to see how such an endorsement would cause the CPS to take that course, as there could still be a finding of fact hearing somewhere down the line.